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HomeMy WebLinkAbout2006-112 Agrmt - Peck Smiley Ettlin AGREEMENTBETINEEN OWNER AND ARCHITECT THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSUL TA TION WITH AN A TTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICA TlON. AGREEMENT Made as of the 14th day of June in the year of two thousand and six. BETINEEN the Owner: City of Ashland 455 Siskiyou Blvd Ashland, Oregon 97520 and the Architect: Peck Smiley Ettlin Architects 4412 SW Corbett Avenue Portland, Oregon 97239 .., For the followina oroiect: Ashland Fire Station No.2 Improvement Project Architectural design, engineering and construction services consisting of programming, site planning, schematic design and cost estimates. ARTICLE 1 ARCHITECT'S RESPONSIBILITIES 1.1 ARCHITECT'S SERVICES 1.1.1 The Architect's services consist of those services performed by the Architect, Architect's employees and Architect's consultants as enumerated in Articles 2 and 3 of this Agreement and any other services included in Article 12. . 1.1.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the work. Upon request of the Owner, /the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner. 1.1.3 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 11.5.1. 1.1.4 The Owner's approvals of documents and other items, e.g., in Subparagraphs 2.3.1, 2.4.1, and 2.5.1, are not waivers or releases of the Architect's duty to provide the documents and other items in accordance with this Agreement and in accordance with applicable professional standards. 1.1.5 The Architect accepts the relationship of trust and confidence established between the Architect and the Owner by this Agreement. The Architect covenants with the owner to furnish the best skill and judgment of the Architect and to cooperate with the Owner, the Owner's representatives, contractors and other interested parties in furthering the interests of the Owner. In order to promote successful completion of the Project in an expeditious and economical manner, the Architect shall provide architectural services for the Owner in all phases of the Project to which this Agreement applies. The Architect acknowledges that the Owner is relying on the architect to provide professional services in a manner that is consistent with the interests of the Owner. ~ 1.1.6 The Architect shall perform the Architect's services as an independent contractor in accordance with generally accepted standards in the Architect's profession. The Architect shall be responsible for the professional quality, technical accuracy and the coordination of all services performed by the Architect. The Architect shall, without additional compensation, correct or revise any error or deficiencies in the Architect's services that are caused by the Architect's n_egligence. The Owner's review, approval acceptance of, or payment for, any of the Architect's services shall not be construed to waive any of the Owner's rights under this Agreement or any cause of action arising out of the Architect's services. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 2.1 DEFINITION 2.1.1 The Architect's basic services consist of those described in Paragraphs 2.2 through 2.6 and any other services identified in Article 12 as part of basic services, and include normal structural, mechanical and electrical engineering services and all other services that are normally or customarily furnished and reasonable necessary for the Project. 2.2. SCHEMATIC DESIGN PHASE . 2.2.1 The Architect shall review the program furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner. As part of this review, the Architect shall attend a series of meetings with the Owner's project team and the Architect's consultants. 2.2.2 The Architect shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subparagraph 5.2.1. 2.2.3 The Architect shall review with the Owner alternative approaches to design and construction of the Project to contain costs within the Project budget limits. 2.2.4 Based on the mutually agreed-upon program, schedule and Project budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. 2.2.5 The Architect shall submit to the Owner a preliminary estimate of Construction Cost based on current area, volume or other unit costs. The preliminary estimate of Construction Cost shall provide a level of detail satisfactory to the Owner, and include estimates of Construction Cost for each category of work involved. 2.3 DESIGN DEVELOPMENT PHASE .., 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in writing in the program, schedule or Project budget, the Architect shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, landscape architectural, civil engineering, structural, mechanical, environmental, interior designs, and electrical systems, materials and such other elements as may be appropriate. 2.3.2 The Architect shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. 2.4.2 The Architect shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and Contractor. . 2.4.3 The Architect shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.5 BIDDING OR NEGOTIATION PHASE 2.5.1 The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. 2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the earlier of the issuance to the Owner of the final Certificate for Payment or 60 days after the issuance of a certificate of Substantial Completion of the Work. 2.6.2 The Architect shall provide administration of the Contract for Construction as set forth below and in the edition of AlA Document A201, 1987 Edition General Conditions of the Contract for Construction as amended by Owner, unless otherwise provided in this Agreement. ~ 2.6.3 Duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect. 2.6.4 The Architect shall be a representative of and shall advise and consult with the Owner (1) during construction until final payment to the Contractor is due, and (2) as an Additional Service at the Owner's direction from time to time during the correction period described in the Contract for Construction. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument. 2.6.5 The Architect shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing, to review the progress and quality of the Work completed and to determine if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observations as an architect, the Architect shall keep the Owner informed in writing of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the Work . 2.6.6 The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction. The Architect shall not be responsible for the Contractor's schedules or failure to carry out the Work in accordance with the Contract Documents. The Architect shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 2.6.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Architect. Communications by and with the Architect's consultants shall be through the Architect. 2.6.9 Based on the Architect's observations and evaluations of the Contractor's. Applications for Payment and after consultation with the Owner, the Architect shall review and certify the amounts due the Contractor. ..., 2.6.10 The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's observations at the site as provided in Subparagraph 2.6.5 and on the data comprising the Contractor's Application for Payment, that, to the best of the Architect's knowledge, information and belief, the Work has progressed to the point indicated and the quality of Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Architect shall have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the Work. . 2.6.12 The Architect shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples, for the purpose of assuring that if the Work is performed as shown by the submittals, it will be in compliance with the Contract Documents, and for the checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. ., 2.6.13 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Subparagraphs 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, shall receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract Documents and assembled by the Contractor, and shall issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Architect is not authorized by the Owner to make any decision concerning administration of the Contract for Construction that will increase or decrease the contract time, the contract sum or otherwise materially affect the rights and obligations of the Contractor or Owner. References in the Agreement between the Owner and the Architect and the General Conditions of the Contract concerning decisions and interpretations of the Architect shall be deemed to mean "recommendations" by the Architect that are subject to approval of the Owner. The Architect shall make written recommendations on all claims, disputes, and other matters in question between the Owner and the Contractor with due diligence. . 2.6.16 The Architect's role in resolving claims, disputes, and other matters in question between the Owner and Contractor shall be subject to the provisions of the Contract Documents. 2.6.20 The Architect shall provide a reproducible copy of all Drawings, Specifications, and other documents to describe fully the finally constructed Work. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL -; 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 12, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Paragraphs 3.2, 3.3,_and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Paragraph 3.3 are required due to circumstances beyond the Architect's control, the Architect shall notify the Owner prior to commencing such services. If the Owner deems that such services described under Paragraph 3.3 are not required, the Owner shall give prompt written notice to the Architect. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Architect shall have no obligation to provide those services . 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is describ.ed in Subparagraph 2.6.5 is required, the Architect shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compensated thereof as agreed by the Owner and Architect. The duties, responsibilities and limitations of authority of Project Representatives shall be as described in the edition of AlA Document B352 current as of the date of this Agreement, unless otherwise agreed. 3.2.3 Through the observations by such Project Representatives, the Architect shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making revisions in Drawings, Specifications or other documents when such revisions are: . .1 inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; .2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents; or .3 due to changes required as a result of the Owner's failure to render decisions in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction, except for services required under Subparagraph 5.2.5. 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, evaluating Contractor's proposals, and providing other services in connection with Change Orders and Construction Change Directives, providing changes are deemed additional in scope. 3.3.4 Providing services in connection with evaluating substitutions proposed by the Contractor and making subsequent revisions to Drawings, Specifications and other documentation resulting there from. -, 3.3.5 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work. 3.3.6 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.7 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work, provided such claims are not caused by conflicts and/or discrepancies in the documents. 3.3.8 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Architect is party thereto. 3.3.9 Preparing documents for alternate, separate or sequential bids or providing services in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing analyses of the Owner's needs and programming the requirements of the Project. 3.4.2 Providing financial feasibility or other special studies. . 3.4.3 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3.4.4 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 3.4.5 Providing services relative to future facilities, systems and equipment. 3.4.6 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.7 Providing services to verify the accuracy of drawings or other information furnished by the Owner. 3.4.8 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3.4.9 Providing services in connection with the work of a construction manager or separate consultants retained by the Owner. 3.4.10 Providing detailed estimates of Construction Cost, except as provided for in the Scope of Work. .., 3.4.11 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.12 Providing analyses of owning and operating costs. 3.4.13 Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment 3.4.14 Providing services for planning tenant or rental spaces. 3.4.15 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.16 Preparing a set of reproducible record drawings showing significant changes in the Work made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Architect. 3.4.17 Providing assistance in the utilization of ~quipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. . 3.4.18 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than 60 days after the date of Substantial Completion of the Work. 3.4.19 Providing services of consultants for other than architectural, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.20 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall provided full information regarding requirements for the Project, including a program which shall set forth the Owner's objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems and site requirements. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Architect, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. ..., 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. 4.5 The Owner shall, furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. 4.6 The Owner shall furnish the services of geotechnical engineers when such services are requested by the Architect. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. . 4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Architect. 4.7 The Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor" Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Paragraphs 4.5 through 4.8 shall be furnished at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof. 4.10 Prompt written notice shall be given by the Owner to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 The proposed language of certificates or certifications requested of the Architect or Architect's consultants shall be submitted to the Architect for review and approval at least 14 days prior to execution. The Owner shall not request certifications that would require knowledge or services beyond the scope of this Agreement. .., ARTICLE 5 CONSTRUCTION COST 5.1 DEFINITION 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner latest preliminary estimate of Construction Cost that is approved by the Owner of all elements of the Project designed or specified by the Architect. 5.1.2 The Construction Cost shall include the cost of current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction. 5.1.3 Construction Cost does not include the compensation of the Architect and Architect's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST . 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost, if any, prepared by the Architect, represent the Architect's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Architect. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties hereto. If such a fixed limit has been established, the Architect shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. ~ 5.2.4 If a fixed limit of Construction Cost (adjusted as provided in Subparagraph 5.2.3) is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall: .1 give written approval of an increase in such fixed limit; .2 authorize re-bidding or renegotiating of the Project within a reasonable time; .3 if the Project is abandoned, terminate in accordance with Paragraph 8.3; or .4 cooperate in revising the Project scope and quality as reql,1ired to reduce the Construction Cost. 5.2.5 If the Owner chooses to proceed under Clause 5.2.4.4., the Architect, without additional charge, shall modify the Contract Documents as necessary to comply with the fixed limit, if established as a condition of this Agreement. The modification of Contract Documents shall be the limit of the Architect's responsibility arising out of the establishment of a fixed limit. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. . ARTICLE 6 USE OF ARTCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6.1 All work, including all data, Auto-Cad and other drawings, documents, plans, copyrights, specifications, working papers and any other materials the Architect produces in connection with the Agreement shall be considered work made for hire and shall be the property of the Owner. Upon completion or termination of the Agreement the Architect shall deliver these materials to the Owner. The Architect may retain for its own use and at its own cost copies of all work made for hire. Any use or reuse the Owner makes of the work made for hire other than the use for which the work was initially commissioned shall be at the Owner's risk. ARTICLE 7 ARBITRATION 7.1 There shall be a default under this Agreement if either party fails to perform any act or obligation required by this Agreement within fifteen days after the other party gives written notice specifying the breach with reasonable particularity. If the breach specified in the notice cannot be completely cured within the fifteen day period, no default shall occur if the party receiving the notice begins performance of the act or obligation within the fifteen day period and thereafter proceeds with due diligence and in good faith to ,.-, cure the breach as sobn as practicable. 7.2 Notwithstanding Paragraph 7.1, either party may declare a default by written notice to the other party, without allowing an opportunity to cure, if the other party repeatedly breaches the terms of this Agreement. 7.3 In the event of a default,. before either party may bring an action in any court concerning this Agreement, such party must first seek in good faith to resolve the issue through negotiation, mediation or through other non-binding alternative dispute resolution. 7.4 Pending final resolution of a dispute, or pending termination of this Agreement under this article, the parties shall proceed diligently with the performance of this Agreement. 7.5 If a default occurs and it is not resolved under Paragraph 7.3 above, the party injured by the default may elect to terminate this Agreement and pursue any equitable or legal rights and remedies available under Oregon law. All remedies sh,all be cumulative. 7.6 Any litigation arising out of the Agreement shall be conducted in Circuit Court of the State of Oregon For Jackson County. ARTICLE 8 . TERMINATION, SUSPENSION OR ABANDONMENT 8.1 In addition to the right to terminate this Agreement under Article 7 as amended by this exhibit, the Owner may terminate by giving the Architect written notice thirty days prior to the termination date. 8.2 If the Owner terminates this Agreement under Paragraph 8.1, the Architect may complete such analyses and records as may be necessary to place its files in order and if necessary to protect the Architect's professional reputation, to complete a report on the Architect's services performed to date of termination. 8.3 If the owner terminates this Agreement under Paragraph 8.1, the Architect shall be paid for all fees earned and reimbursable incurred prior to the termination date plus reasonable termination expenses. The Architect shall not be entitled to compensation for lost profits. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 This Agreement will be governed by and construed in accordance with laws of the State of Oregon. The Architect shall promptly observe and comply with all present and future laws, orders, regulations, rules and ordinances of federal, state and local governments with respect to the Architect's services. .., 9.2 Terms in this Agreement shall have the same meaning as those in AlA Document A201, General Conditions of the Contract for Construction, 1987 Edition as amended by Owner. 9.3 In the event of any breach of this Agreement by the Architect or negligent performance of any of the services, the Owner's cause of action against the Architect shall not be deemed to accrue until the Owner discovers such breach or negligence, or should have, with reasonable diligence, discovered such breach or negligence. However, the preceding sentence shall not be construed to allow the Owner to prosecute an action against the Architect beyond the maximum time limitation provided by Oregon law. 9.4 The Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AlA Document A201, General Conditions of the Contract for Construction, 1987 Edition as amended by Owner. The Owner and Architect each sh9lJ require similar waivers from their contractors, consultants and agents. 9.5 The Owner and Architect, respectively bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Architect shall assign this Agreement without the written consent of the other. . 9.6 This Agreement represents the entire and integrated agreement between the Owner and Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. 9.7 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. 9.8 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. However, the Architect shall report to the Owner the presence and location of all hazardous material of which the Architect becomes aware. 9.9 The Architect shall have the right to include representations of the design-of the Project, including photographs of the exterior and interior, among the Architect's ,. promotional and professional materials. The Architect's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Architect on the construction sign and in the promotional materials for the Project. ~ 9.10 The services covered by this Agreement shall be rendered by the Project team identified in the Architect's proposal. Mr. Hans Ettlin, principal in PSE, and Mr. Bob Thr~pp, project architect, shall act as the Architect's representative in all communications and transactions with the Owner. The Architect shall endeavor in good faith to honor reasonable specific requests of the Owner with regard to assignment of the Architect's employees to perform services if the requests are consistent with sound business and professional practices. - 9.11 The Owner reserves the right to approve subcontracts with consultants that the Architect proposes to retain for electrical and mechanical engineering and other services covered by this Agreement. The Owner's approval shall not be unreasonably withheld. 9.12 The Architect shall endeavor in good faith to honor reasonable specific requests by the Owner to retain consultants for lighting, acoustical engineering, and interior design, if the requests are consistent with sound business and professional practices. If the Architect does not consent to a request by the Owner to retain a consultant, the Owner shall have the right to contract directly with the consultant, and in that event, the Architect shall coordinate, but shall not be responsible for, the quality of the consultant's services. . 9.13 The Architect shall defend, indemnify, and hold harmless the Owner, its officers, agents, and employees harmless from any and all claims, actions, costs, judgments, damages, or other expenses resulting from injury to any person (including injury resulting in death) or damage to property (including loss or destruction), of whatsoever nature, arising out of or incident to the Architect's negligence (including but not limited to, the acts or omissions of the Architect's employees, agents and others designated by the Architect to perform services covered by this Agreement). The Architect shall not be held responsible for any claims, actions, costs, judgments, damages, or other expenses directly and proximately caused by the negligence of the Owner, the construction contractor, or any consultant retained by the Owner pursuant to Paragraph 9.11. 9.14 The purpose of Subparagraph 9.13 above is to allocate risk for claims between Owner and Architect. Nothing in this Agreement is intended to extend any rights to any other person or organization or to waive any rights to indemnity that Owner or Architect may have under the Contract Documents. To the extent permitted by law, the Contract Documents shall require the construction contractor to defend, indemnify and hold harmless the Owner and the Architect from any claims arising from the construction of the Project and to carry liability insurance for such claims. 9.15 The Architect shall, at its own expense, at all times during the term of the Agreement, maintain in force a comprehensive general liability policy including coverage for professional errors and omissions and a comprehensive automobile liability policy including owned and non-owned automobiles. The coverage under each liability insurance policy shall be equal to or greater than the limits for claims made under the Oregon Tort Claims Act with minimum coverage of $500,000 per occurrence (combined single limit for bodily injury and $100,000 per occurrence for property damage. Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to the commencement of any services by the Architect. Each certificate shall state that coverage afforded under the policy cannot be canceled and restrictive modifications cannot be made until at least 30 days prior written notice has been given to the Owner. A certificate which states merely that the issuing company "will endeavor to mail" written notice is unacceptable. ..., 9.16 The Architect is engaged by the Owner as an independent contractor in accordance with the standards prescribed in ORS 670.600. The Architect shall be responsible for the payment of: .1 Social Security, Federal and State withholding taxes for the wages paid to the Architect's employees. .2 Taxes on payments to tt"!e Architect's principals and shareholders. 9.17 The Architect's officers, principals and employees shall not be deemed employees of the Owner and shall not be entitled to any benefits from the Owner that generally are granted to the Owner's employees, such as vacation, holiday and sick leave, other leaves with pay, medical and dental coverage, life and disability insurance, overtime, worker's compensation, unemployment compensation and retirement benefits. 9.18 The Architect shall comply with applicable provisions of ORS ORS 279C.505, 279C.515, 279C.520, and 279C.530. Pursuant to ORS 279C.520(2) any person employed by the Architect who performs work under this Agreement shall be paid at least time and a half pay for all overtime in excess of 40 hours in anyone week, except for persons who are excluded or exempt from overtime pay under ORS 653.010 to 653.261 or under 29 U.S.C. Sections 201 to 209. . 9.19 The Architect is a "subject employer" as defined in ORS 656.005 and shall comply with ORS 656.017. Prior to commencing any work, the Architect shall certify to the Owner that the Architect has worker's compensation coverage required by ORS Chapter 656. If the Architect is a carrier insured employer, the Architect shall provide the Owner with a certificate of insurance. If the Architect is a self-insured employer, the Architect ) shall provide the Owner with a certification from the Oregon Department of Insurance and Finance as evidence of the Architect's status. 9.20 The Architect shall maintain all licenses and certificates that are required by law for performing architectural services, including, but not limited to, certificates of registration required by ORS Chapter 671. 9.21 Any notice required to be given under this Agreement or any notice required to be given by law shall be in writing and may be given by personal delivery, mail, or facsimile transmission. This paragraph shall not be construed to excuse either party from giving notice in accordance with applicable laws. 9.22 No provision of this Agreement shall be deemed waived unless such waiver is in writing and signed by the party waiving its rights. Any waiver of a breach by either party, whether express or implied, shall not constitute waiver of any other breach. 9.23 If any provision of this Agreement is held by a court to be invalid, such invalidity shall not affect any other provision of this Agreement. This Agreement shall be construed as if such invalid provision had never been included. .., 9.24. If the amount of this contract is $16,379 or more, Consultant is required to comply with chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in this chapter, to all employees performing work under this contract and to any subcontractor who performs 50% or more of the service work under this contract. Consultant is also required to post the attached notice predominantly in areas where it will be seen by all employees. ARTICLE 10 PAYMENTS TO THE ARCHITECT 10.1 DIRECT PERSONNEL EXPENSE 10.1.1 Direct Personnel Expense is defined as the direct salaries of the Architect's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 10.2 REMBURSABLE EXPENSES 10.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and consultants in the interest of the Project, as identified in the following Clauses. . 10.2.1.1 Expense of transportation in connection with Project; expenses in connection with authorized out-of-town travel; long-distance communications; and fees paid for security approval of authorities having jurisdiction over the Project. 10.2.1.2 Expense of reproductions, postage and handling of Drawings, Specifications and other documents. 10.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 10.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 10.2.1.5 Expense of additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally carried by the Architect and Architect's consultants. 10.2.1.6 Expense of computer-aided design and drafting equipment time when used in connection with the Project. 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 10.3.1 An initial payment as set forth in Paragraph 11.1 is the minimum payment under this Agreement. ., 10.3.2 Subsequent payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Subparagraph 11.2.2. 10.3.3 If and to the extent that the time initially established in Subparagraph 11.5.1 of this Agreement is exceeded or extended through no fault of the Architect, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Subparagraph 11.3.2 10.3.4 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subparagraph 11.2.2, based on (1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 10.4.1 Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Architect's statement of services rendered or expenses incurred. 10.5 PAYMENTS WITHHELD . 10.5.1 No deductions shall be made from the Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the Work other than those for which the Architect-has been found to be liable 10.6 ARCHITECT'S ACCOUNTING RECORDS 10.6.1 Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually convenient times. 10.6.2 The Architect shall develop and maintain complete books of account and other records on the Architect's services which are adequate for evaluating the Architect's performance. The Architect's records shall provide a clear distinction between the expenditures and revenues related to the Project and the expenditures and revenues related to the Architect's other business. 10.6.3 The Owner shall have the right to request an audit of the Architect's books and records by a certified public accountant retained by the Owner. 10.7 The Owner shall not be indebted or liable for any obligation created by this Agreement in violation of the debt limitation of Article XI, Section 10 of the Oregon Constitution. ~ 10.8 The Owner shall not be liable for any expenditure under this Agreement for which statutory appropriation has not been made pursuant to ORS 294.305 et seq. (Local Budget Law. 10.9 The Owner has appropriated funds for the Architect's services that will be provided during the fiscal year that ends on June 30, 2006. In the event no funds or insufficient funds to pay Architect's services are appropriated for subsequent fiscal years, the Owner shall notify the Architect as soon as the budgetary decision is made, and this Agreement shall terminate on the last day of the fiscal year for which appropriations are made. Such notice is a condition precedent to invoking the limitation on payment stated in Paragraph 10.8. ARTICLE 11 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows: 11.1 AN INITIAL P/\YMENT of Dolkm:; ($ ) shall be made upon execution of this Agreoment and credited to the Owner's account at final payment. Billing to be monthly on a percentage completion basis. 11.2 BASIC COMPENSATION . 11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services ,. included in Article 12 as part of Basic Services, Basic Compensation shall be computed as follows: (Insert basis of compensation, including stipulated sums, multiples or percentages, and identify phases to which particular methods of compensation apply, if necessary.) The Owner shall pay, in accordance with Subparagraph 11.2.2, Basic Compensation as follows: in tho amount of tho follov:ing e;tipulatod sum: dollare: ($ ). Pre-Bond Election Programming, Site Analysis Phase Schematic Design Phase Partial Design Development Phase Total Post-Bond Election Balance of Design Development Phase Construction Documents Phase Project Bidding Phase Construction Phase SubTotal $10,114 $19,148 $12.738 $42,000 $ 26,500 $155,418 $ 7,171 $ 49.906 $212,495 Total Contract $280,995 Above figures include all reimbursable costs. ~ 11.2.2 'Nhen compensation is based on a e;tipulated sum or porcentage of Construction Cost, progr-oe;s payment& for Basic Services in each phase shall total the follo'....ing percentages of tho total Basic Componsation payable: (/Rson additkJRa! phasos as appropriato.) PH^SE PERCENT/\GE IN NUMERALS Proliminary Doe;ign Phae;o 15% Design Development Phaso 20% Construction Document Phase ~2% Construction Administration Phose: 20% Expenses 3% Total Basic Compensation 100% The architect foe proposal '.viii provide:] bre:]k out of charges b:]sed on the abo'.'O listed project phases. 11.3 COMPENSATION FOR ADDITIONAL SERVICES 11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 3.2, compensation shall be computed as follows: . 11.3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 3 and 12, other than (1) Additional Project Representation, as described in Paragraph 3.2, and (2) services included in Article 12 as part of Basic Services, but excluding services of consultants, compensation shall be computed as follows: (Insert basis of compensation, including rates and/or multiples of Direct Personnel Expenses for Principals and employees, and identify Principals and classify employees, if required. Identify specific services to which particular methods of compensation apply, if necessary.) Shall be billed at actual cost. 11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical and electrical engineering services and those provided under Subparagraph 3.4.19 or identified in Article 12 as part of Additional Services, a multiple of () times the amounts billed to the Architect for such services. shall be bilfed at actual cost. (Identify specific types of consultants in Article 1~, if required.) 11.3.3.1 The project consultants will be as follows: ~ Electrical & Mechanical Engineers Structural Engineers Civil Engineers Soils Engineers Level 1 Survey Hazardous Materials Survey Traffic Engineers Topographical & Boundary Survey Landscape Architects Consulting Architect Cost Estimator 11.4 REIMBURSABLE EXPENSES Interface Engineering Lewis & Van.Fleet Engineering PBS Engineering & Environmental By Owner By Owner By Owner By Owner By Owner Otten & Associates Not Applicable. Architectural Cost Consultants 11.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 10.2, and any other items included in Article 12 as Reimbursable Expenses, a multiple of ( ) times tho expenses incurred by the Architect, the Architect's employees and consultants in the interest of the Project are included in the base fee schedule listed in 11.2.1. 11.5 ADDITIONAL PROVISIONS 11.5.1 IF THE BASIC SERVICES covered by this Agreement have not been completed within time frames as follows: Pre-Bond Election Services Post-Bond Election Services 6 months 18 months . within () months of the date hereof, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as provided in Subparagraphs 10.3.3 and 11.3.2. Owner will not be financially obligated by contract for Post-Bond Phase of project if voters turn down funding request. 11.5.2 Payments are due and payable ( 30 ) days from the date of the Architect's invoice. Amounts unpaid ( 60 ) days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. Interest rate for delinquent payments: 9% per annum 11.5.3 The rates and multiples set forth for Additional Services shall be annually adjusted in accordance with normal salary review practices of the Architect. ARTICLE 12 OTHER CONDITIONS OR SERVICES ~ 12.1 The Owner's representative, authorized to act on the Owner's behalf, shall be: James A. McNamara, PE. The Architect's representative, authorized to act on the Architect's behalf, shall be: Mr. Hans Ettlin, principal in PSE, and Mr. Bob Thrapp, project architect. Either party may substitute another representative by gi'.'ing notice to the other party. mutual written agreement. 12.2 The scope of work is as follows: . 1. Provide preliminary design services as follows: ~ Review and update fire station no. 2 space needs analysis. ~ Complete concept studies for proposed sites. ~ Provide programming analysis review and revision. ~ Develop preliminary conceptual design diagrams. ~ Meet with department personnel to gather input on proposed site development & floor plans. ~ Prepare preliminary site & floor plans to scale. ~ Coordination with City of Ashland Department of Community Development 2. Provide preliminary bond election package materials as follows: ~ Prepare project site preparation and construction cost estimates. ~ Provide analysis of value engineering options. ~ Prepare architectural renderings for community display and website posting. ~ Conduct community open house regarding proposed designs ~ Assist with preparation of bond election materials relative to cost estimates 3. Provide design development services as follows: ~ Revise detailed site & floor plans from approved concept plans. ~ Provide elevation I section studies ~ Meet with community design committee to gather input on proposed exterior designs and materials. ~ Provide concept & design presentations for City Council & Commissions involved in review process. 4. Provide planning analysis and submissions ~ Preparation of planning application documents ~ Presentation of planning application to Planning Commission ~ Findings to be developed by architect. ~ Re-design work as necessary to obtain Planning Commission approvals. ~ Attend COA Project Utilities Review Meeting 5. Provide construction administration services ~ Provide bidding services, conduct bid opening. (City will print bid documents ) ~ Construction meetings as required (minimum twice monthly). ~ Review of all submittals. ~ Response to RFI's and other technical information requests. ~ Review of payment requests and project close-out. ~ Meet project requirements for Certificate of Occupancy. ~ Provide detail cost estimate at 50% construction documents. This Agreement is executed under seal as of the day and year first written above. OWNER ~ ~ :J..~- ..~ (Signature) ~ /1.- /zar..' (Date) ARC~I~CT t:]~ j .~ (Signature) 6 (v; I ()b (Date) . CITY RECORDER'S COpy Page 1 / 1 ,., CITY OF ASHLAND 20 E MAIN ST. ASHLAND, OR 97520 (541) 488-5300 r-:::-, ~ VENDOR: 000904 PECK SMILEY ETTLlN 4412 SW CORBETT AVE PORTLAND, OR 97201 SHIP TO: Ashland Fire Department (541) 482-2770 455 SISKIYOU BLVD ASHLAND, OR 97520 FOB Point: Terms: Net 30 days Req. Del. Date: Speciallnst: Req. No.: Dept.: ADMINISTRATIVE SERVICES Contact: Keith Woodley Confirming? No Fire Station 2 - Architectural Services Contract, Phase 1 42,000.00 BILL TO: Account Payable 20 EAST MAIN ST 541-552-2028 ASHLAND, OR 97520 SUBTOTAL TAX FREIGHT TOTAL ~ ~ %~~ Au zed Signature VENDOR COPY A request for a Purchase Order REQUISITION FORM CITY OF ASHLAND Date of Request: THIS REQUEST IS A: tJ Change Order( existing PO # Required Date of Delivery/Service: Vendor Name: Address: City, State, Zip: Phone: Fax Number Deliver Location PECK SMILEY ETTLlN ARCHITECTS 4412 SW CORBETT PORTLAND, OR 97239 (503) 248-9170 (503) 248-0223 SOLICITATION PROCESS Small Procurement D Sole Source D Invitation to Bid D Less than $5,000 D Written findings attached (Copies on file) D Quotes (Not required) CooDerative Procurement XX Reauest for ProDosal D State of ORfWA contract (Copies on file) Intermediate Procurement D Other government agency contract D SDecial1 ExemDt D (3) Written Quotes D Copy of contract attached D Written findings attached (Copies attached) D Emeraencv D Contract # D Written findings attached Description of SERVICES Total Cost FIRE STATION NO.2 ARCHITECTURAL SERVICES CONTRACT - PHASE 1 Item # Quantity Unit Description of MATERIALS Unit Price Total Cost Project Number 000048.150 D Per attached QUOTE Account Number 410.03.43.00.702200 · Items and services must be charged to the appropriate account numbers for the financia/s to reflect the actual expenditures accurately. By signing this requisition form, I certify that the information provided above meets the City of Ashland public contracting requirements, and the documentation can be provided upon request. Employee Signature: Supervisor/Dept. Head Signature: !['~ ~ U ~ G: Finance\ProcedurelAPlFonnslRequisition Fonn.doc Updated on: 7/1912006